R (Antoniou) v (1) Central and North West London NHS Foundation Trust, (2) Secretary of State for Health, (3) NHS England [Administrative Court]
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens |
| Judgment Date | 10 October 2013 |
| Neutral Citation | [2013] EWHC 3055 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7495/2011,CO/7495/2011 |
| Date | 10 October 2013 |
[2013] EWHC 3055 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Aikens
Mr Justice Mitting
Case No: CO/7495/2011
Paul Bowen QC (instructed by Bhatt Murphy Solicitors) for the Claimant
Angus Moon QC (instructed by RadcliffeLeBrasseur Solicitors) for the 1st Defendant
Ben Hooper (instructed by Treasury Solicitors) for the 2nd Defendant
Fenella Morris QC & Rose Grogan (instructed by Capsticks Solicitors) for the 3rd Defendant
Hearing dates: 25–26/07/2013
This is the judgment of the court to which each of us has contributed.
I. The Questions
This claim for judicial review arises out of the suicide of Mrs Jane Antoniou, whom we shall refer to as JA, on 23 October 2010. At the time she was a patient detained in the Mental Health Unit of Northwick Park Hospital ("the hospital) under section 3 of the Mental Health Act 1983 ("MHA"). The hospital is part of the First Defendant NHS Foundation Trust ("CNWL"). The claimant, Dr Michael Antoniou, Reader in Molecular Genetics at King's College, London, is the widower of JA. At the time of her death at the age of 53, JA and the claimant had been married for 29 years, but they had separated.
Until the relevant provisions of the Coroners and Justice Act 2009 came into force, when a person who was detained under the MHA committed suicide or died as a direct result of self-harm, an "enhanced" inquest would take place, (ie one conducted on an expanded basis leading to a narrative verdict), pursuant to the "procedural obligations" of the state created by Article 2 of the European Convention on Human Rights, ("ECHR"), as given the force of law in the United Kingdom by the Human Rights Act 1998 (" HRA"). 1 The principal question in this case is whether Article 2 of the ECHR further obliges the State to conduct an immediate and independent investigation into the circumstances of the detained patient's death, prior to an inquest. Although there was an investigation into the circumstances of JA's death by the hospital and strategic health authority, there was no 'independent' investigation prior to the inquest, or, indeed, after it. Sadly, suicides of people detained under the MHA are not rare. The extent of the procedural obligation of State in relation to inquiries after such MHA deaths is therefore a matter of public interest and importance. 2
The claimant raises three subsidiary questions that arise if the answer to the principal question raised is "yes". First, if the procedural obligations of Article 2 do require an independent investigation prior to an inquest in a case where a MHA detained patient has committed suicide, then can the failure to have one be "cured" by having an appropriate inquest? Secondly, if the answer to that question is "no", then which defendant was in breach of its duty pursuant to Article 2 of the ECHR and section 6 of the HRA? Thirdly, if the answer is that the original defect can be "cured" by an appropriate inquest, was that achieved in this case, and, if not, which defendant was at fault?
The claimant also raises two further questions. The first is whether the absence of an independent preliminary investigation into the suicide of detained patients constitutes a difference in treatment compared with the treatment of other deaths in State custody,
such as a death in prison or probation custody 3 or one in police, immigration or Customs & Excise detention. 4 It is submitted that this difference in treatment amounts to unlawful discrimination for the purposes of Article 2 taken with Article 14 of the ECHR, for which discrimination the Secretary of State for Health (second defendant) and/or NHS London (now the NHS Commissioning Board, but known as NHS England — the third defendant) is said to be responsible under section 6 of the HRA or section 19 of the Equality Act 2010 (" EA"). Allied to that question is a further issue: did the first and third defendants have "due regard" to the need to eliminate such discrimination for the purposes of section 149 of the EA when deciding not to conduct an independent inquiry at the outset in JA's case?II. The Facts
JA had long suffered from a mental disorder and had been diagnosed with borderline personality disorder and schizophrenia. Despite this she had had a successful career as a mental health trainer and advocate and was very well regarded in this sphere. JA was first admitted to a mental hospital in 1985. She was admitted subsequently on numerous occasions, both voluntarily and under section 3 of the MHA. 5 From 1994 her condition improved and although JA was admitted to hospital from time to time, these admissions were voluntary. JA was admitted 16 times over a period of 10 years prior to September 2010. During the same period there had been some 28 occasions involving self-harm by JA, including 8 involving tying a ligature around her neck. The most serious relapse before the final admission occurred in May 2010, when JA was admitted to hospital for a month. The claimant took her there.
In September 2010 JA and the claimant were going through a very difficult time in their relationship. They were separated and the claimant was in a relationship with another woman. JA learnt of this fact and it precipitated a severe relapse of her condition and a dramatic increase in risk. JA was voluntarily admitted to the hospital on 29 September 2010. JA and the claimant were not in direct contact during the last two weeks before she died.
On 13 October 2010 JA was detained at the hospital under section 5(2) of the MHA. 6 On 15 October the detention was continued under section 3 of the MHA. The period of "Close Watch" that had been instituted on 13 October was discontinued on 15 October. On 21 October 2010 JA was granted leave of absence from the hospital
pursuant to section 17 of the MHA. 7 On 22 October JA attended a professional conference in London. There she had a telephone conversation with her sister in law, Anne Antoniou, in which JA learned that the claimant was not going to return to live with JA. Upon her return to the hospital JA was distressed. At about 17.00 hours JA was seen and assessed by two staff psychiatrists Dr Alison Marr and Dr Janine Desforges. Their record states that JA was "…extremely upset and devastated, stating she does not want to live anymore" in the light of the fact that she and her husband were separated. JA also expressed suicidal ideas of jumping out of a high window. The doctors decided to put JA on "standard" observation (ie. once every hour), as opposed to the more frequent regime of "intermittent" or "close" observation. This direction to check JA every hour was given to the staff by Dr Marr and Dr Desforges. At 19.30 JA tried to leave her ward, Eastlake, but was prevented from doing so by Staff Nurse Rhoda Ogunjimini. She was the last person to speak to JA before her death. Her report stated that JA said she was "…fed up and lonely". The nurse also reported that JA was tearful.At 21.00 hours on 22 October 2010 the night shift staff came on duty on Eastlake Ward. The team consisted of Staff Nurses Nazima Saimo and Winifred Mugo and Health Care Assistant ("HCA") Rachel Lambo. It is recorded that JA was observed at 3.30, 4.30, 5.30 and 6.30 hours on 23 October 2010. The last observation, which recorded that JA was asleep on her right side, was challenged at the Inquest held between 30 April and 16 May 2012. The observation sheet was not signed. At 07.00 hours the day staff came on duty. They included Staff Nurses Temple Diorgu, Winifred Mugo, Hyacinth Huie and Rhoda Ogunjimini.
At about 07.40 hours (10 minutes later than the scheduled observation time) SN Huie observed JA lying on her back on the floor of her room in the ward. SN Diorgu was called. She subsequently said in a statement that JA was "cold, stiff and blue". The "Crash Team" was summoned. This included Dr Shipway, the medical registrar. He attempted resuscitation of JA but this was unsuccessful. He pronounced JA dead at 08.12 hours. In a report that Dr Shipway prepared very shortly afterwards he noted that the morning staff had found JA's bed/mattress stacked against the door and that there was a ligature (actually a dressing gown cord) around her neck.
Staff Nurse Munteanu secured the medical records of JA almost immediately. The police were notified of JA's death and Detective Sergeant Woodham attended at 08.45 hours on 23 October 2010. He started an investigation and arranged for statements to be taken from SNs Huie and Diorgu and Dr Shipway. He took possession of exhibits, including the ligature, although that seems to have been lost at some time thereafter whilst it was in the custody of the police. The police took no statements from the night staff. On the same day the police notified the Coroner's Office and the claimant was informed of JA's death.
On 25 October 2010 the claimant was contacted by the Director of Operations of CNWL. On the same day the Care for Quality Commission ("CQC") was notified of JA's death, as was required under CNWL's "Serious Untoward Incidents Policy", ("SUI" and "SUI policy" respectively), which had been promulgated in January 2010. Under the CNWL's SUI policy there should be an "initial management review"
within 72 hours of a SUI, which is defined as having occurred where "an incident has serious outcomes" and so, plainly...To continue reading
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